The Religious Freedom Restoration Act kicks into effect today in Indiana. This is the bill that brought Indiana national attention and made it the butt of a presidential joke. A “fix” amended to the legislation specified that it does not provide grounds or justification for discrimination.
The most interesting thing, in my mind, is that the legislation was written with two things primarily in view: the Affordable Care Act and same-sex couples. Both of those matters have been the subject of decisions by the Supreme Court of the United States since RFRA was written. And so it will be interesting to see whether and to what extent national-level decisions render this state legislation moot.
I continue to worry about how the legislation treats companies as persons with respect to religious freedom. Conceivably, the owner of a company could insist that their monotheism means that they cannot sell fruits and vegetables to people who look like they might be Indian and thus could well be Hindu, and thus might use the produce in an idolatrous ceremony.
Of course, it is already well-established that the government has legitimate interests that can override religious freedom. An extreme example is that child welfare trumps the possibility of someone practicing child sacrifice. Indeed, hygiene and animal welfare concerns have usually trumped even the practice of animal sacrifice. Pacifists do not get refunds from their taxes that allow them to avoid participating in war thereby. All RFRA does is place the burden of proof on the entity allegedly burdening someone else’s religious freedom to show that it has a justifiable reason for doing so. It invites litigation, and so is probably only good news for lawyers.I spoke to WISH-TV news yesterday and a very small clip from the conversation aired this morning. My thoughts above cover a number of things I said which did not end up on TV, some of which are also quoted on the WISH-TV website.